Friday, 30 October 2015

At the occasion of the farewell of President Dean Spielmann, a Liber Amicorum has been published entitled 'Liber amicorum Dean Spielmann. Mélanges en l`honneur de / Essays in honour of Dean Spielmann' by Wolf Legal Publishers. The beautiful tribute to the work of president Spielmann, available both in hardcover and softcover versions, contains an enormous amount of articles by fellow judges and other ECHR specialists, brought together in a volume which weighs over a kilo and numbers 720 pages. The majority of chapters focuses on Article 8 ECHR, the right to respect for private life, a right which he may hopefully abundantly enjoy after his retirement from the Court. It also includes a full bibliography of Spielmann's writings - except for the Court judgments and opinions that is. This is the abstract:

The term of office of Dean Spielmann as President of the European Court of Human Rights is coming to a close. After graduating from the prestigious universities of Louvain and Cambridge, Dean Spielmann took up the practice of the law, at which he excelled, until his election as a judge of the Court in 2004. He was elected President of a Section in 2011 and Vice-President in 2012, becoming the President of the Court later that same year. During his term of office, he has developed relations with both supreme courts and other international courts and contributed to the Strasbourg Court’s high standing in the world, far beyond the continent of Europe. A man of dialogue, he has been from the outset an ardent advocate of Protocol No. 16 to the European Convention on Human Rights, which he has dubbed the “Protocol of dialogue”. This book brings together contributions from judges and former judges, at national and international level, from academics and from officials of the Court’s Registry, who wished to show their admiration and friendship for him.

This paper presents an analysis of the case law of the European Court of Human Rights (ECtHR) on fundamental rights limitations for which the States have advanced ‘economic’ or financial justifications. The analysis discloses important differences in the ECtHR’s approach to such cases, which depend on the way they are framed and on which Convention articles they are based. It is submitted that such differences are difficult to maintain if they are not based on the substance and importance of the interests at stake. This paper therefore argues that the Court should develop a more uniform, ‘core rights’ based approach towards all rights claims which are related to the use of resources by States.

* Laurens Lavrysen, 'Strengthening the Protection of Human Rights of Persons Living in Poverty under the ECHR'

In recent years, the European Court of Human Rights has developed a significant jurisprudence which illustrates the added value of the European Convention on Human Rights (ECHR) in the field of poverty. Building on the findings of Amartya Sen’s “capability approach”, the article examines the extent to which the Court has grasped the nature of poverty as “capability deprivation”. It is argued that, due to polycentric concerns and a reluctance to overcome the negative / positive obligations and civil and political / social and economic rights dichotomies, the Court has only, to a limited extent, done so. Subsequently, three approaches are examined that could allow it to better take into account the findings of the “capability approach” and that could allow for enhanced protection of the human rights of persons living in poverty under the ECHR: endorsing a more complex perspective on the responsibility of the state; analysing poverty as a failure to provide substantive equality; and recognising the vulnerability of persons living in poverty.

Thursday, 22 October 2015

This month, the Court has started a Twitter account in a variety of languages which will bring news on publications on and translations of case-law a well as the HUDOC case-law database. The Twitter is called ECHRpublication and has gained over 500 followers in the first few weeks. The move is part of making the case-law translations (over 15,000 have been published in HUDOC since 2012 in almost 30 languages) more accessible.

According to Court Registrar Erik Fribergh: “Over recent years the Court has stepped up its efforts to improve the understanding of the Court’s case-law especially in States where neither English nor French is well understood. With this account, and by addressing them in their own language, the Registry wishes to further assist legal professionals, public officials and NGOs in keeping abreast of developments in this area.”

The Twitter will also highlight translations of case-law guides, handbooks and factsheets which are published on the website of the Court. In addition, the Court still has a Twitter account with its press releases, which is for the overwhelming part in English and French.

Thursday, 15 October 2015

Earlier this week, the President of the European Court of Human Rights, Dean Spielmann, in one of the last weeks of his term, delivered the Thomas More lecture at Lincoln's Inn in London. The lecture, entitled "Whither Judicial Dialogue", president Spielmann argues for the importance of dialogical mechanisms between European and national judges (and between the two highest European courts) both in formal ways, through case-law) and informally through face-to-face meetings. This should not only be done in the classical ways - national judges in case-law formulate reactions to European judgments and vice versa - but also through Protocol 16 (allowing for advisory opinions and so far not yet entered into force due to the small number of ratifications) and through the recently created network of superior courts. This network can not only help the highest national courts to stay up-to-date with Strasbourg case-law but may also help, the other way around, Strasbourg in its comparative-law endeavours which it frequently undertakes. Spielmann also pointed to the use of Article 46, para 3 ECHR, on the elucidation of judgments, which may not only be useful to domestic executives, but also to domestic courts. The Court's President, in the lecture, called judicial dialogue "a necessity, a corrective and an incentive" and even "the golden key" to the future protection of human rights. The full lecture can be found here.

Friday, 9 October 2015

It is a pleasure to introduce a guest post by one of my colleagues, Paulien de Morree, a PhD researcher here at Utrecht University. She has written a short commentary on the judgment of the Court of this week in Gahramanli and others v. Azerbaijanwhich deals with problems in the electoral process. please find her short commentary below:

Yesterday, the European Court of Human
Rights issued a judgment concerning the 2010 parliamentary elections in
Azerbaijan in the case of Gahramanli and other v.
Azerbaijan(8 October 2015, appl. no.
36503/11). The applicants, who were all candidates for various opposition
parties, alleged that due to numerous irregularities the elections in their
constituency had not been free and fair. Because of the domestic authorities’
failure to adequately address their complaints, the Court found a violation of
their right to stand for election guaranteed in Article 3 of Protocol No. 1
(para. 89).

The main issue submitted by the
applicants concerns the lack of impartiality of the electoral commissions. One-third
of the members of these commissions at all levels, including the Central
Electoral Commission (CEC), are nominated by or on behalf of the
parliamentary-majority party. In addition, one other member who is formally
unaffiliated with any political party, is appointed “in agreement” with the majority party. Essentially, pro-ruling
forces therefore have a relative majority vis-à-vis
the representatives of other political parties in all electoral commissions (para.
75).

Normally the Court does not go
into an evaluation of the compatibility of a national system of electoral
administration with Convention requirements in a way that goes beyond the case at hand. But here, given the particular context of the issue, the Court found that “the method in question was one of the systemic factors contributing to
the ineffectiveness of the examination by the CEC of the applicants’
election-related complaint in the present case” (para. 79).

The Court
referred to observations by the Organisation for Security and Co-operation in
Europe (OSCE) and concerns of the European Commission for Democracy through Law
of the Council of Europe (Venice Commission) regarding the lack of impartiality
of the electoral commissions (see in particular the final report of the OSCE/ODIHR Election
Observation Mission on the parliamentary elections of 7 November 2010). In addition, the Court
recalled that in the past it has found violations of Article 3 of Protocol No.
1 in numerous election-related complaints against Azerbaijan regarding
arbitrary decisions by electoral commissions in relation to opposition
candidates (see for example ECtHR 8 April 2010, Namat Aliyev v. Azerbaijan, appl. no. 18705/06; ECtHR 30 September
2010, Kerimova v. Azerbaijan, appl.
no. 20799/06; ECtHR 10 January 2012, Mammadov
v. Azerbaijan (no. 2), appl. no. 4641/06; ECtHR 10 January 2012, Hajili v. Azerbaijan, appl. no. 6984/06;
ECtHR 21 February 2012, Khanhuseyn Aliyev
v. Azerbaijan, appl. no. 19554/06; 25 September 2014, Karimov v. Azerbaijan, appl. no. 12535/06). Yet, so far the issue continues to not be adequately addressed by the Azerbaijani government. In that
context, the Court strongly encourages the Azerbaijani authorities to reform
the composition of the electoral commissions in order to improve the
effectiveness of the examination of election-related complaints.

The relevance of this call for reform of
the electoral commission is emphasised by the fact that new parliamentary elections
in Azerbaijan will take place on 1 November. In the light of these upcoming
elections, the Parliamentary Assembly of the Council of Europe recently adopted
a Resolution calling on the Azerbaijani authorities “to take the necessary measures to avoid the shortcomings highlighted
during previous elections” (Resolution 2062(2015)The functioning of democratic institutions in Azerbaijan” of 23
June 2015, par. 4). In the build up to the elections, a Needs Assessment
Mission of the OSCE has visited Azerbaijan in August. This Mission yet again
reported concerns about the candidate registration process, the lack of respect
for the fundamental freedoms of members of the opposition, the limited access
to pluralistic views and impartial information and the lack of confidence in
the independence of electoral dispute resolution bodies (Report of the OSCE/ODIHR Needs Assessment
Mission, 31 August 2015, at 2). All in all, these preliminary developments are far from
comforting on whether the 2015 elections will show much democratic improvement.

Thursday, 8 October 2015

The difficult relation between the United Kingdom and European human rights institutions has become a 'topos' in academic literature, as literary scholars would call it. A new book has just been published to take stock of these discussions. Katja S Ziegler, Elizabeth Wicks, and Loveday Hodson (all from the University of Leicester) are the editors of a collection of scholarly articles brought together in a book entitled 'The UK and European Human RightsA Strained Relationship?', published by Hart. The introductory chapter is freely available online as a sample here. The great merit of the book is that it is so multifaceted, going far beyond looking just at British politicians criticising the Strasbourg Court. Rather, the book assesses the issue from a myriad of perspectives, including the positions and perspectives of national judges, the press, and other actors. It also looks at the EU and makes a comparison with a selected number of other countries (including Italy, Russia, Germany and France). To some, the book, like many edited volumes, may be too broad-ranging, but it does include so many valuable contributions about its core theme, including historical perspectives on the issue, that it is more than worthwhile. This is the book's abstract:

"The UK’s engagement with the legal protection of human rights at a European level has been, at varying stages, pioneering, sceptical and antagonistic. The UK government, media and public opinion have all at times expressed concerns about the growing influence of European human rights law, particularly in the controversial contexts of prisoner voting and deportation of suspected terrorists as well as in the context of British military action abroad. British politicians and judges have also, however, played important roles in drafting, implementing and interpreting the European Convention on Human Rights. Its incorporation into domestic law in the Human Rights Act 1998 intensified the ongoing debate about the UK’s international and regional human rights commitments. Furthermore, the increasing importance of the European Union in the human rights sphere has added another layer to the relationship and highlights the complex relationship(s) between the UK government, the Westminster Parliament and judges in the UK, Strasbourg and Luxembourg.

The book analyses the topical and contentious issue of the relationship between the UK and the European systems for the protection of human rights from doctrinal, contextual and comparative perspectives and explores factors that influence the relationship of the UK and European human rights."

Tuesday, 6 October 2015

This week, the European Court of Human Rights created a network aimed at the exchange of information on case-law between Strasbourg and the highest national courts. The idea was announced at the opening of the judicial year and supported by the Council of Europe's member states. The nodes in this network of exchange will be the Jurisconsult of the European Court and the research departments of the domestic superior courts. The French Court of Cassation and Conseil d’État were the first to join, but the highest judicial institutions of several other ECHR state parties have indicated their interest to join. The Court's President Dean Spielmann expressed that this new way of sharing information is part of the shared responsibility between the European and national levels to implement the European Convention. One of the aims is consistency of national decisions with ECHR case-law. See the full press release here.

Friday, 2 October 2015

This week, both the Parliamentary Assembly of the Council of Europe (PACE) and the President of the European Court of Human Rights have called upon the Committee of Ministers to start making use of the 'infringement' procedure of Article 46 ECHR, introduced as part of the reforms of Protocol 14. The procedure offers the possibility to refer to the Court an issue when implementation of a judgment is hindered by either questions of interpretation (para. 3) or a refusal to abide by a judgment (para. 4). Thus far this procedure has not yet been used.

The trigger was a new report (no. 8 of this kind) by rapporteur Klaas de Vries on recurring, systemic implementation problems in a number of state parties. As in previous yeas, a small group of countries (although admittedly some very populous ones) is responsible the large majority of the Court's backlog. Almost 80% of applications stems from just nine state parties where structural problems (poor detention conditions, ill-treatment by security forces and overly long domestic court procedures) lead to repetitive cases: Italy, Turkey, Russia, Ukraine, Romania, Greece, Poland, Hungary, and Bulgaria. More generally, almost 11,000 of the Court's judgments remain unimplemented.

The recommendation of PACE on the issue can be found here and the statement of the Court's President here. In a resolution, the Parliamentary Assembly deplored "the delays in implementation and the lack of political will of certain States Parties to implement judgments of the Court." Close followers of Strasbourg may see this newest episode as another shot in a long series of similar calls. Only the emphasis on Article's 46 yet unused possibilities is relatively new - using it may be worth a try.